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Home My WebLink AboutContract 44726 (2)CITY SECRETARY PURETECH SYSTEMS, INC. End User Software License Agreement City of Fort Worth Holly and Village Creek Water Treatment Plants This End User Software License Agreement ("License Agreement" or "Agreement") is entered into by and between the CITY OF FORT WORTH, ("LICENSEE") located at 1000 Throckmorton Street, Fort Worth, Texas, 76102 and PURETECH SYSTEMS, INC., ("PURETECH"), located at 1950 W. Rose Garden Lane, Ste 140, Phoenix, Arizona, 85027. RECITALS LICENSEE is the registered owner of an advanced security and monitoring systems (the "Systems") installed at Licensee's Village Creek and Holly water treatment plants. The Systems rely on certain proprietary and non-proprietary software (the "Software") of PureTech Systems Inc. AGREEMENT 1. GRANT OF LICENSE. PURETECH hereby grants to LICENSEE, as of the purchase date as documented in any Certificate of Ownership, a non-exclusive license to use the Software and any related documentation ("Documentation") subject to the following terms: 1.1 LICENSEE may use the Software only in connection with the operation with the Systems. 1.2 LICENSEE may copy the Software for back-up and archival purposes, provided any copy must contain all of the original Software's proprietary notices. 2. LICENSE RESTRICTIONS. 2.1 The term LICENSEE shall include the City of Fort Worth, its officers, directors, employees, agents and representatives. 2.2 LICENSEE may not: (i) permit other individuals to use the Software except under the terms listed above; (ii) modify, translate, reverse engineer, decompile, disassemble (except to the extent that this restriction is expressly prohibited by law) or create derivative works based upon the Software or Documentation; (iii) copy the Software or Documentation (except for back-up or archival purposes); (iv) rent, lease, transfer, or otherwise transfer rights to the Software or Documentation; or (v) remove any proprietary notices or labels on the Software or Documentation. Any such forbidden use shall immediately terminate LICENSEE's license to the Software. 2.3 LICENSEE agrees that LICENSEE shall only use the Software and Documentation in a manner that complies with all applicable laws in the jurisdictions in which LICENSEE use the Software and Documentation, including, but not limited to, applicable restrictions concerning privacy, copyright and other intellectual property rights. 3. TITLE Title, ownership, rights, and intellectual property rights in and to the Software and Documentation shall remain in PURETECH and/or its suppliers. The Software is protected by the copyright laws of the United PURETECH Systems, Inc. City of Fort Worth End User Software License Agreement Page 1 of 4 RECEIVED AUG 2 0 n'i) ( VV States and international copyright treaties. Title, ownership rights and intellectual property rights in and to the content accessed through the Software including the content contained in the Software media demonstration files shall be retained by the applicable content owner and may be protected by applicable copyright or other law. This license gives LICENSEE no rights to such content. 4. WARRANTIES & LIABILITIES 4.1 PURETECH warrants that for the term of the Software Maintenance Agreement and any subsequent renewal of the Software Maintenance Agreement (the "Warranty Period"), provided that LICENSEE operates the Systems in accordance with the License granted hereby and in accordance with the instructions and restrictions applicable to the Systems, the Software, if operated as directed, will reasonably achieve the functionality described in the Documentation. PURETECH does not warrant however that LICENSEE's use of the Software will be uninterrupted or that the operation of the Software will be error -free. If LICENSEE finds that any Software or Documentation is defective during the Warranty Period, LICENSEE may contact PureTech regarding its repair or replacement. PureTech will be entitled to determine at its discretion whether to replace or repair the Software or Documentation. LICENSEE agrees that this procedure provided in this Section for repair or replacement of defective Software and Documentation will be LICENSEE'S sole and exclusive remedy for any claim relating to any alleged defect or nonconformity in the Software or Documentation. 4.2 NO OTHER WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW PURETECH AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES EITHER EXPRESS OR IMPLIED INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE SOFTWARE, THE ACCOMPANYING WRITTEN MATERIALS AND ANY ACCOMPANYING HARDWARE. 4.3 If any modifications are made to the Software by LICENSEE during the Warranty Period, if the Software or the Systems are subjected to accident, abuse or improper use, or if LICENSEE violates the terms of this License Agreement, this warranty shall immediately terminate. This warranty shall not apply if the Software is used on or in conjunction with hardware or Software other than the unmodified version of hardware and Software with which the Software was designed to be used as described in the Documentation. THIS LIMITED WARRANTY GIVES LICENSEE SPECIFIC LEGAL RIGHTS; LICENSEE MAY HAVE OTHER RIGHTS THAT VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY WHETHER IN TORT CONTRACT OR OTHERWISE SHALL PURETECH OR ITS SUPPLIERS OR LICENSEES BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES EVEN IF PURETECH SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR FOR ANY CLAIM BY ANY OTHER PARTY. FURTHER, IN NO EVENT SHALL PURETECH'S LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT EXCEED THE LICENSE FEE PAID TO PURETECH FOR THE SOFTWARE AND DOCUMENTATION. 5. INDEMNIFICATION PURETECH agrees to defend, settle, or pay, at its own cost and expense, any claim or action against the LICENSEE for infringement of any patent, copyright, trade secret, or similar property PURETECH Systems, Inc. City of Fort Worth End User Software License Agreement Page 2 of 4 right arising from LICENEE'S use of the Software and/or Documentation in accordance with this License Agreement. PURETECH shall have the sole right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise and to settle or compromise any such claim, and LICENSEE agrees to cooperate with it in doing so. LICENSEE agrees to give PURETECH timely written notice of any such claim or action, with copies of all papers LICENSEE may receive relating thereto. If the Software and/or Documentation or any part thereof is held to infringe and the use thereof is enjoined or restrained or, if as a result of a settlement or compromise, such use is materially adversely restricted, PURETECH shall, at its own expense and as LICENSEE'S sole remedy, either: (a) procure for LICENSEE the right to continue to use the Software and/or Documentation; or (b) modify the Software and/or Documentation to make it non -infringing, provided that such modification does not materially adversely affect LICENSEE'S authorized use of the Software and/or Documentation; or (c) replace the Software and/or Documentation with equally suitable, compatible, and functionally equivalent non - infringing Software and/or Documentation at no additional charge to LICENSEE; or (d) if none of the foregoing alternatives is reasonably available to PURETECH, terminate this License Agreement and refund to LICENSEE the payments made to PURETECH under this agreement. 6. TERMINATION PURETECH shall have the right to automatically terminate this License Agreement if LICENSEE materially breaches any of the terms herein and does not cure such breach within fifteen (15) days of receipt of notice from PURETECH. Either party may terminate this License Agreement upon thirty (30) days written notice to the other party . Upon any termination of this License Agreement, LICENSEE shall immediately discontinue use of the Software and shall within three (3) days return to PURETECH, or certify destruction of, all full or partial copies of the Software, documentation and related materials provided by PURETECH. LICENSEE's obligation to pay accrued charges and fees shall survive any termination of this License Agreement. 7. ASSIGNMENT This Agreement is personal to LICENSEE, and may not be assigned without PURETECH's express written consent, which such consent shall not be unreasonably withheld. In the event that LICENSEE merges with another entity or the majority of its assets are acquired by another entity during the Term, LICENSEE shall provide thirty (30) days written notice of such merger or acquisition, or as much notice as is reasonably possible prior to the effective date of the assignment. PURETECH may assign this License Agreement to any entity that it merges with or to any entity that acquires the majority of its assets during the Term. PURETECH shall provide LICENSEE with thirty (30) days written notice of such assignment, or as much notice as is reasonably possible prior to the effective date of the assigmment. An assignment due to merger or acquisition under this section shall not require consent of either party. Both parties shall perform under this Agreement until such termination is effective. 8. MISCELLANEOUS This License Agreement shall constitute the complete and exclusive agreement between LICENSEE and PURETECH with respect to the license granted herein, notwithstanding any variance with any purchase order or other written instrument submitted by LICENSEE, whether or not formally rejected by PURETECH or any PURETECH reseller. The use by LICENSEE of the System is expressly made conditional on LICENSEE's consent to the terms set forth herein. The terms and conditions contained in this License Agreement may not be modified except in a writing duly signed by LICENSEE and an PURETECH Systems, Inc. City of Fort Worth End User Software License Agreement Page 3 of 4 authorized representative of PURETECH. If any provision of this License Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances. This License Agreement shall be governed by the laws of the State of Texas, without regard to conflicts of law provisions, and LICENSEE and PURETECH hereby consent to the exclusive jurisdiction of the state and federal courts sitting in the State of Texas, Tarrant County. Any and all unresolved disputes relating in any way to, or arising out of, the Software, LICENSEE's use of the Software or this License Agreement may be submitted to non -binding mediation in the State of Texas; except that, to the extent that LICENSEE has breached or indicated LICENSEE's intention to breach this License Agreement in any manner which violates or may violate PURETECH's intellectual property rights, or may cause continuing or irreparable harm to PURETECH (including, but not limited to, any breach that may impact PURETECH's intellectual property rights, or a breach by reverse engineering), PURETECH may seek injunctive relief, or any other appropriate relief, in any court of competent jurisdiction. Any mediation of a dispute under this Agreement shall be conducted under the rules then prevailing of the American Arbitration Association. ACCEPTED AND AGREED: PURETECH SYSTE , INC: By: 1,141 7�w. Name: Larry owe Title: President/CEO Date: 07/30/2013 ATTEST: By: Name: Title: v Office Manager (3//bA4.at-- Jan Broderick PURETECH Systems, Inc. City of Fort Worth End User Software License Agreement Page 4 of 4 CITY OF FORT WORTH: Fernando Costa Assista nt ity Manager Date: 8/lP,3 • ATTEST: ED TO FORM AND LEGALITY: Maleshia B. Farmer Sr. Assistant City Attorney Contract Authorization: None required OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX